Federal Immigration Detainers After Arizona v. United States

Loyola of Los Angeles Law Review, Nov 2013

In Arizona v. United States, the Supreme Court held that three of the four challenged provisions to Arizona’s “Support Our Law Enforcement and Safe Neighborhoods Act” were preempted. The Court reached this conclusion by focusing on the federal government’s supremacy in immigration enforcement. Ironically, the Court’s focus on federal supremacy undermines the executive branch’s central enforcement measure for obtaining custody of suspected immigration violators: immigration detainers. The executive branch issues over a quarter million immigration detainers each year to state and local law officials. These detainers command state and local officials to hold a prisoner, who would otherwise be released, in custody awaiting pickup by federal immigration officials. This Article examines the immigration detainer program under the analytical framework provided by the Court’s Arizona decision. This Article proceeds by first describing the Arizona decision and its underlying analytical framework. It then analyzes immigration detainers within this framework, concluding that the federal immigration detainer regulation is ultra vires and raises substantial constitutional questions. Ultimately, this Article shows that the Arizona decision will have significant impact on immigration enforcement beyond the question of allocation of enforcement authority between the federal government and state and local governments.

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Federal Immigration Detainers After Arizona v. United States

Federal Immigration Detainers Aft er Arizona v. United States Loyola of Los Angeles Law Review Commons@Loyola 0 1 Christopher N. Lasch 0 1 Law Reviews 0 1 0 Christopher N. Lasch, Federal Immigration Detainers Aft er Arizona v. United States, 46 Loy. L.A. L. Rev. 629 (2013). Available at: https://digitalcommons.lmu.edu/llr/vol46/iss2/25 , USA 1 Thi s Notes and Comments is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital In Arizona v. United States, the Supreme Court held that three of the four challenged provisions to Arizona’s “Support Our Law Enforcement and Safe Neighborhoods Act” were preempted. The Court reached this conclusion by focusing on the federal government’s supremacy in immigration enforcement. Ironically, the Court’s focus on federal supremacy undermines the executive branch’s central enforcement measure for obtaining custody of suspected immigration violators: immigration detainers. The executive branch issues over a quarter million immigration detainers each year to state and local law officials. These detainers command state and local officials to hold a prisoner, who would otherwise be released, in custody awaiting pickup by federal immigration officials. This Article examines the immigration detainer program under the analytical framework provided by the Court’s Arizona decision. This Article proceeds by first describing the Arizona decision and its underlying analytical framework. It then analyzes immigration detainers within this framework, concluding that the federal immigration detainer regulation is ultra vires and raises substantial constitutional questions. Ultimately, this Article shows that the Arizona decision will have significant impact on immigration enforcement beyond the question of allocation of enforcement authority between the federal government and state and local governments. * Assistant Professor, University of Denver Sturm College of Law; J.D., Yale Law School; A.B., Columbia College. My thanks go to the editors for inviting me to participate in this Supreme Court review. I am also indebted to the following people who provided helpful suggestions and insights along the way, though of course any problems that remain are my own: Deborah Bergman, Patience Crowder, Annie Lai, Nantiya Ruan, Paromita Shah, Giovanna Shay, Robin Walker Sterling, and Michael J. Wishnie. The Article also benefitted from a workshop held at the University of Utah S.J. Quinney College of Law as part of the Rocky Mountain Junior Scholars Forum, and I am grateful to the University of Denver for sending me to participate in the Forum. Finally, I wish to thank John Galligan for his helpful research assistance and Christopher Linas for his masterful editing. Amendment Problems ...............................................698 IV. CONCLUSION .............................................................................700 “This is not the system Congress created.”1 I. INTRODUCTION Immigration law always implicates civil rights,2 and the past twenty years have seen an increasing importance for immigration as a major civil rights battleground.3 A perceived immigration crisis4 intensified the heat of pro-immigrant and anti-immigrant sentiment and brought immigration federalism issues from a simmer to a full boil. Those seeking more vigorous immigration enforcement and those seeking an expansion of immigrant rights alike attacked federal immigration policy as a failed endeavor.5 Both groups sought change at the state and local levels, but through radically different programs. Anti-immigrant groups persuaded some state and local governments to pass measures supplementing federal immigration enforcement efforts6—purportedly grounded in the “inherent authority” of state sovereign governments to regulate immigration. Meanwhile immigrants’ rights advocates, decrying federal enforcement measures tainted by racial profiling and constitutionally suspect home and workplace raids, lobbied local governments to disentangle state and local law enforcement from federal immigration enforcement,7 resist cooperation, and create “sanctuary cities.”8 The Court’s June 25, 2012, decision in Arizona v. United States9 marked, in part,10 the end of the story of one such local effort: Arizona’s “Support Our Law Enforcement and Safe Neighborhoods Act,” colloquially known simply as “S.B. 1070,”11 enacted at the behest of anti-immigration lobbyists frustrated by what they believed to be the federal government’s failure to sufficiently enforce the Nation’s immigration laws. Hailed as a landmark decision of historic proportions,12 Arizona struck down three of the four challenged sections of S.B. 1070.13 Two of the three provisions struck down created state crimes to punish immigrants for not carrying federally required registration (...truncated)


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Christopher N. Lasch. Federal Immigration Detainers After Arizona v. United States, Loyola of Los Angeles Law Review, 2013, Volume 46, Issue 2,